A man who owns a popular brand of beer alongside a pair of comedians who shot to fame by creating skits on social media has denied basing his design on another brand in court.
The Federal Court of Australia will have to come to the decision on whether The Inspired Unemployed’s Better Beer causes confusion in the market alongside Brick Lane’s Sidewinder.
Larrikins Jack Steele and Matt Ford collaborated with Torquay Beverage Company and Mighty Craft to launch the highly successful low-carb beer in October 2021.
The zero carb craft beer was the brainchild of Torquay Beverage Co’s Nick Cogger, but each of the comedians hold a 20 per cent stake in the company.
Months after Better Beer’s release, Brick Lane lodged proceedings in the Federal Court of Australia, claiming the influencers’ beer “made false, misleading or deceptive representations” when it launched.
Brick Lane Brewing, whose stakeholders include Billy Slater, Dan Carter, Eddie McGuire and Mick Molloy, launched the legal action in December.
The company claims consumers would be confused that their product, Sidewinder Hazy Pale, and Better Beer were related in some way and is seeking corrective advertising and damages.
The trial entered its second day on Tuesday and Mr Cogger, the general manager of Torquay Beverage Company and Better Beer, took to the witness stand.
He told the court Better Beer began the design process in January 2021, months before Sidewinder was on the market.
Brick Lane’s barrister Justine Beaumont showed Mr Cogger some of his tendered evidence in which he listed Brick Lane as a “key competitor” in the market.
“You did specifically regard Brick Lane as a competitor,” Ms Beaumont said.
Mr Cogger said he didn’t look at it as a competitive company but more of an “end product”.
Ms Beaumont continued to press Mr Cogger.
“When you were developing Better Beer, you had your eye very square on Brick Lane,” she said.
He replied: “We wanted to play against the incumbent mainstream product such as Furphy and James Squire. We said there are probably only three players in that category and Brick Lane was one of them.”
Ms Beaumont took Mr Cogger to another page of evidence that showed a briefing Mr Cogger sent to a designer, which again listed Brick Lane in the “competitive set”.
“We pretty much say the whole market is our competitor,” Mr Cogger said.
“I wish we had more competitors to be honest.”
The court was told the Instagram handle for Better Beer was not available when the brand’s marketing plan began.
But because the comedic duo were “so well known” on Instagram, they managed to contact someone “high up” on the platform.
“My business partners are quite well known and the person referred to, he’s high up on Instagram and that’s essentially how we got the handle Better Beer that day,” Mr Cogger said.
Managing director of Brick Lane, Paul Bowker, sat at the back of the court as Mr Cogger gave his evidence.
Earlier in the trial, Ms Beaumont told the court that her client’s brand relied heavily on the “distinctive curve stripes” of Sidewinder’s cans and packaging.
“Sidewinder Hazy Pale has the distinctive curve stripes, the blue, organ and yellow and the off-white background,” Ms Beaumont said.
Ms Beaumont told the court that Sidewinder had produced sales and marketing in the period before Better Beer was launched in July 2021.
By this time, she said consumers had “recognised the get-up” as being associated with Sidewinder.
“The emphasis on the stripes of the can in the tiles and the colour scheme,” Ms Beaumont said.
She told the court a media release was also issued by the brand on July 21, and more than 300 bus adverts had been erected, showing the Sidewinder beer.
Ed Heerey QC, acting on behalf of Better Beer and its owners, told the court a release on the Australian Stock Exchange on July 26, 2021, announced that the product would be going to stores in October that year.
On the same day as the ASX announcement, Mr Heerey told the court that five articles were posted in various news outlets as well as on the influencers’ social media pages.
While it is not being suggested Better Beer copied Sidewinder, Mr Heerey said it was absurd that the two products would confuse consumers.
“If there’s anything you’re going to remember it’s the name. If you’re ever going to go back looking for it, you’ll need the name,” Mr Heerey told the court.
The trial continues before Justice Angus Stewart.
ncG1vNJzZmivp6x7r7HWrGWcp51jrrZ7xaKlmqaTmnyjwdKipZ6ro2TBqbGMoqWsqJmnsqV51KecpqicpMamsIyfmJydo2LApq%2FOp5tmnJGueqq6jJymrqqkYq%2BiwNOlnGanppq%2Fbq7Eraueql2Xsqa%2BjqecsKtdqMGwvthoam5uZ2uyeX%2BYm5qfaZRlsqKvxWlqbG5lbq%2BirpFunJ0%3D